R v BEO

The question on appeal was whether the trial judge erred in law in allowing the jury to consider a broader case than the case particularised by the Crown in circumstance where the Crown had not sought leave to amend the particulars of the offence. This case considers the importance of particulars provided by the Crown at the commencement of trial and particularly the procedural fairness in an accused knowing the case to be answered by him. In reasons delivered by Justice Crowley, with whom Boddice JA and Bradley J agreed, the Court held that the decision by the trial judge to direct the jury on a broader basis than what was particularised by the Crown, in the absence of a an application for leave to amend the particulars, was a miscarriage of justice.

Boddice JA, Bradley and Crowley JJ

3 March 2025

The Crown alleged the appellant sexually assaulted the complainant one night when she was at his home for a sleepover with his daughter, when wrestling with her as part of a game. [8]. The Crown case was that the appellant’s daughter was in her room with her friend, watching a movie and eating lollies, when the appellant and his eldest teenage son entered the room to find the lollies. The appellant’s son and his daughter began wrestling over the lollies. While this was happening, the appellant tackled the complainant and began to wrestle with her. [9]. The Crown case was that while wrestling with the complainant, the appellant opportunistically put his head down to her chest and opened and closed his mouth, acting as if he was trying to bite her nipple, and while doing so his mouth eventually touched her nipple over her shirt. [10].

The Crown particularised the offence as an application of force, involving the appellant touching the complainant’s breast on the outside of her clothing, with his lips or mouth, without her consent. At the conclusion of the Crown case, the trial judge raised the prospect that irrespective of the way the case had been particularised, it appeared on the evidence that the jury could find the offence proven if it was satisfied beyond reasonable doubt that the appellant had attempted or threatened to bite the complainant’s breast. The trial judge ruled that the Court was not bound by the Crown’s particulars and the expanded case would be left to the jury. Consequently, the trial judge directed the jury that the assault element of the alleged offence would be proven if the jury was satisfied beyond reasonable doubt that the appellant’s conduct amounted to either an application of force, or an attempt or threat to apply force. [3].

The jury found the appellant guilty but, by special verdict, announced that it was not satisfied that the assault involved an application of force. [4]. The appellant appealed his conviction on the basis that by allowing the “jury to consider a broader case than that articulated by the Crown, the trial judge made a wrong decision on a question of law”. [6].

The Evidence

The complainant made a preliminary complaint to the appellant’s daughter immediately after the incident. She also made a further preliminary complaint to her mother upon return from school the following day. A s 93A statement was subsequently made to police. [11]. During the s 93A statement the complainant said the appellant had tried to bite her nipple but she did not allege that the appellant actually made contact at any stage. [16].

The appellant participated in a record of interview which was tendered by the Crown at trial. [17]. During the interview, the appellant denied doing anything at any point that could be considered as a sexual assault or indecent assault upon the complainant. [24]. The contact with the complainant was described as wrestling over a phone and the appellant slipping onto her. [18].

At the commencement of the trial a document titled “Jury Indictment and Particulars” was provided to the trial judge. The written particulars stated: [26]:

“Particulars:[Appellant] touched [complainant’s] breast, on the outside of her clothing, with his lips or mouth, without her consent.”

Both the Crown opening and the trial judge’s preliminary directions to the jury, which were given before the Complainant was called to give evidence, proceeded on the basis that the allegation at trial was one of actual touching. [28]. The complainant was cross-examined at length about the inconsistency between her first complaint to police that the appellant tried to bite her and the subsequent evidence she gave, that he did bite her.

At the conclusion of the evidence, the trial judge directed the jury that it would still be open to the jury to convict the appellant of sexual assault, “if it was an attempt to do so with the opening and closing of the mouth”. Defence counsel had initially conceded that the case would not have been run differently had the Crown proceeded on the basis of the expanded case, but the following morning, defence counsel informed the trial judge that the concession was wrongly made. Defence counsel referred the trial judge to R v Knight (2022) 11 QR 704 in support of the contention that leave should not be given to amend the particulars as the appellant had a materially greater chance of acquittal on the narrow particulars and may therefore lose a chance of an acquittal if the case were broadened. [41].

In response, the Crown prosecutor relied upon R v Chong [2012] QCA 265 to support the argument that an “alternative pathway to conviction could be left to the jury without the particulars being amended, ‘because the jury have their own right to reason a pathway to conviction or acquittal’”. [43]–[45].

The trial judge also directed the jury that in the event of a guilty verdict, the jury would be required to answer the following question by way of a special verdict. [49]:

“Do you find that the accused did bite [the complainant]’s breast, yes or no?”

Her Honour directed the jury that the answer “Yes” could only be given to the special verdict question if all twelve jurors were satisfied beyond reasonable doubt that the appellant bit the complainant’s breast, otherwise the answer must be “No”. [50]. A guilty verdict was subsequently returned on the charge of sexual assault, and the special verdict question was answered, “No”. [50].

Consideration

Justice Crowley noted that the question on appeal was whether the Crown was permitted to advance a case beyond its particulars, without first being given leave to amend its particulars. [57]. In agreeing with the contention advanced by the appellant, his Honour considered in some detail the cases of Chong and Knight. [59].

Chong

In Chong’s case, the offending was categorised as a single course of conduct and the only conflict in the evidence was whether the appellant’s conduct was simply running in the direction of the complainant with a rock held over her head, or whether it included the further step of actually throwing it at the complainant. Holmes JA (as her Honour then was) considered the first scenario could properly be characterised as a threat to apply force within the meaning of s 245 Criminal Code 1899, and the second as an attempt to do so and in those circumstances amending the particulars would make little difference. [64]–[65].

Insofar as the Crown’s departure from the particulars was concerned, there was no consensus in Chong’s case whether that had resulted in a miscarriage of justice. [70]. Accordingly, Crowley J held that Chong is not authority for the proposition that “the Crown is not required to obtain leave to amend its particulars where a trial judge makes the defence aware of the basis upon which the case will be left to the jury and amended particulars ‘would have added nothing’; nor is it authority for the proposition that amendment of particulars is not required where the alleged offence involves a ‘single course of conduct’ and the only conflict raised by the evidence is the extent of the conduct.” [80].

Knight

In Knight, the appellant was tried and convicted of multiple sex offences committed over a number of years against a complainant who was aged from 10 to 17 years. One of the grounds agitated on appeal by Knight was that a miscarriage of justice had occurred as a result of the Crown departing from their particulars and opening; that the trial judge had improperly allowed amendment of the indictment on one count; and that the trial judge had improperly allowed amendment of the particulars in respect of another (Count 10). [71].

Crowley J held that “Knight is authority for the proposition that where … the Crown provides particulars of the indictment, which become part of the court record, the Crown is bound by those particulars unless, and until, they are amended; and furthermore, where leave to amend the particulars is sought by the Crown, a trial judge is obliged to consider the prejudice the proposed amendment would occasion to the accused person when determining whether leave should be granted.” [81].

Decision

Crowley J determined that the trial judge wrongly noted that the avenues to conviction were obvious from the outset and had been the Crown case “all the way through” and despite the issue being raised, no application was made to amend the particulars by the Crown. [89]. The trial judge was correct to observe that the Court was not bound by the Crown’s particulars, but only in the sense that the Court always retained the power to permit the Crown to amend its particulars, in the exercise of discretion, if it first sought leave to do so. That is not what happened in this case. Here, the trial judge simply determined it would be open to the jury to convict the appellant if satisfied beyond reasonable doubt that the appellant’s conduct amounted to an assault, by any of the diverse means the law defines as an assault, and therefore permitted the jury to consider a case different to that particularised and advanced by the Crown. [90].

Over the appellant’s objection, it was not open for the trial judge to take that course in the absence of the Crown seeking, and being granted, leave to amend its particulars. [92].

In the result, the appeal was allowed, the verdict set aside and a verdict of acquittal was entered. [7], [1], [2].

K Mythen of Counsel